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Consternation reigns in Sri Lanka following President Ranil Wickremesinghe’s directive to gazette an inconsequential draft 22nd Amendment to the Constitution, denounced by his critics to be a  transparent political ruse for the purpose of delaying a highly anticipated Presidential elections in respect of which a date is to be declared ‘soon’ by a jittery Elections Commission.

‘Spurious’ Presidential apologies

This week, the President was in unnervingly fine fettle, first lambasting the judiciary for ‘interfering’ with the executive power of the people to a befuddled audience of village communities during the distribution of ‘Urumaya’ freehold land deeds in Mahiyanganaya. Close upon that, he assured the public during the opening of a new courts complex in Beligaha, Galle that they need not ‘fear’ the proposed 22nd Amendment or lament that this would be the end of democracy in Sri Lanka. 

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This was a mere correction of the constitutional text in order that Article 83 (b) of the Constitution falls in line with the 19th Amendment’s limitation of the term of the President and the term of Parliament to 5 years, he assured. That revision had been overlooked by the drafters of the 19th Amendment (2015) due to an ‘oversight,’ the President claimed, going so far as to label the lawyer to whom he had entrusted the task of drafting the 19th Amendment as ‘inexperienced.’ A spurious ‘apology’ to the people for that bad choice followed.

Sri Lankans generally take these ‘apologies,’ Presidents or ex-Chief Justices as the case may be, not only with a pinch of salt but also a strong whiff of contempt. Rather distastefully, the President has got into the habit of blaming others for the faults of his administration; earlier it was his pet anti-corruption lawyers whom he blamed for flawed and failed prosecutions during 2015-2019. Now he blames an ‘inexperienced’ lawyer for an ‘omission’ in the 19th Amendment even though it is very well known that this constitutional drafting exercise was engaged in by a few, carefully selected for their ready obedience to him (at the time).          

Blaming the judiciary for faults of the Government’s law reforms

That ‘blame game’ is being taken to even higher levels, it seems. Take for instance, the President’s assertion in Mahiyanganaya that handing out deeds to villagers had been halted during his Government in 2002-2003 due to a ‘court decision.’ He went on to say, (to quote), ‘…if the program had been implemented 20 years ago, the people of this country could have been granted free land rights earlier.’ In other words, President Wickremesinghe was blaming the judiciary for not allowing land rights to be conferred on Sri Lankans earlier.

But to contradict the President in no uncertain terms, this statement amounts to a grievous if not mischievous misrepresentation of the ‘court decision’ in question. This columnist formed part of the legal team that petitioned the Supreme Court at the time. The facts thereto must be clarified to set the record straight. This is important as this Presidential habit of subverting facts for the purpose of ad hoc and ad hominem attacks need to be halted, irrespective of the political purpose that this may serve.

We must be mindful that the judiciary does not have the public platform to defend themselves. And unrelenting Presidential haranguing on the judiciary not ‘interfering’ with the executive and the legislature day in and day out has become tiresome. In fact, this actually inhibits due and proper critique of the institution of the Sri Lankan judiciary and their decisions by citizens in legitimate good faith which are required for the greater democratic good of the country. 

Context of the Court decision on the Lands Bill (2003)

So to clarify, President Wickremesinghe was referring to a Bill titled “Lands Ownership” (November 2003), which was placed by his Government before Parliament with no doubt, laudable purposes. The Court was petitioned on failure by the Wickremesinghe Government to adhere to constitutional procedures in proposing that particular law reform measure. It is difficult to think that the President was not aware of the context in which that challenge was made and the grounds on which an adverse decision was given.  

The Bill’s aim was “providing for the disposal of the ownership of lands by the transfer of ownership of State lands to citizens of Sri Lanka; for the removal of certain restrictions attached to grants and transfers made under the Land Development Ordinance (Cap. 464) and the Land Grants (Special Provisions) Act, No 43 of 1979...” It was successfully challenged in the Supreme Court with the principal objections being that it had been referred to Parliament without being first referred to every Provincial Council established under the Constitution

Consequently the Bill was held to be inconsistent with Article 154(g) 3 of the Constitution read with item 18 of List 1 of the Ninth Schedule (the “Provincial Council List) Appendix 11. That stipulated that; “alienation or disposition of state land within a Province to any citizen or any organisation shall be by the President on the advice of the relevant Provincial Council in accordance with the laws governing the matter. (Vide section 1;3 of Appendix11)’ (SCD/26-36/2003, per JJ Shiranee Bandaranayake, J.A.N. de Silva and Nihal Jayasinghe).

President’s powers in regard to land also an issue

Consequent to the Determination of the Court, the Bill was withdrawn from the Order paper of Parliament. Ironically in the current backdrop of the President admonishing the judiciary not to infringe his ‘authority ’, a specific focus of challenge to the 2003 Lands Bill concerned the President’s own powers. It was contended that the Bill unconstitutionally interfered with the powers of the President of the Republic vested with the power to “make such grants and dispositions of land and immovable properties vested in the Republic” Article 33(d) of the Constitution).

Clause 8 compelled the President to abide by a decision made to that effect by the Minister of Lands which amounted to an infringement of Article 33(d) read with Article 3 and 4(b) of the Constitution. If such a clause was to be passed, a two thirds majority of Parliament and a Referendum was required. That said, what is important is that the rejection of the Bill by the Court was on non-adherence to constitutionally mandated procedures.

It was not, as the President appeared to imply, a court ruling on the substantive question of the advisability of granting outright title to the earlier restricted land grantees. This may (arguably) be largely a matter of policy, left to be determined by the State.  Whatever it may be, holding the Court responsible for denying Sri Lankans their land rights is contemptible, to say the least. 

Courting ‘blood on the streets’?

That aside, the current ruckus over the proposed 22nd Amendment to the Constitution leaves a lot to be desired. Revising Article 83 (b) is certainly not a current constitutional imperative. Those who suspect the motives of the President with good reason point out that amendment of Article 83 (b) will necessitate a two thirds majority in Parliament as well as a Referendum.

This was the very reason why the 19th Amendment did not touch that constitutional article. In the present scenario, this move may tear up the electoral map which includes not only the holding of the Presidential election but also the Parliamentary elections in due course.  When the Rajapaksa-led faction protests that its Government always held elections on time, that protest must be (albeit reluctantly) conceded as correct. Even in the darkest of times in this country, elections were conducted on schedule, sometimes earlier.

If President Wickremesinghe intends to subvert the Constitution to take away even that fundamental democratic electoral choice, there will undoubtedly be blood on the streets.